Momand v Baker
[2020] WASC 147
•7 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MOMAND -v- BAKER [2020] WASC 147
CORAM: TOTTLE J
HEARD: 5 MARCH 2020
DELIVERED : 5 MARCH 2020
PUBLISHED : 7 MAY 2020
FILE NO/S: SJA 1048 of 2019
BETWEEN: MOHAMMAD MASOOD MOMAND
Appellant
AND
STEPHEN BAKER
First Respondent
DAVID O'ROURKE
Second Respondent
KELSEY MASEYK
Third Respondent
THOMAS SMRCEK
Fourth Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE G LAWRENCE
File Number : PE 50619 of 2018, PE 50620 of 2018, PE 55512 of 2018, PE 53333 of 2018, PE 53334 of 2018, PE 6276 of 2019, PE 6277 of 2019
Catchwords:
Criminal law - Appeal against conviction - Where conviction entered following plea of guilty - Where appellant submits that he was not, in truth, guilty of the offence - Where appellant submits he could not in law have been guilty of the offence - Whether miscarriage of justice would result from maintaining judgment of conviction - Appeal dismissed
Criminal law - Appeal against sentence - Where appellant alleges compensation order manifestly excessive - Where quotes for compensation provided to magistrate objectively reasonable - Where no objection to quantum of compensation raised before magistrate - Appeal dismissed
Criminal law - Appeal against conviction and sentence - Where appellant alleges incompetency of trial counsel - Where appellant alleges failure by trial counsel to follow his instructions - Where transcript of proceedings reveals regular conduct of matter by counsel - Where transcript reveals counsel taking instructions from the appellant - Whether conduct of counsel caused a miscarriage of justice - Appeal dismissed
Practice and procedure - Adjournments - Consecutive late adjournment applications of criminal appeal - Where appellant seeks adjournment to secure legal representation - Where appeal without any substantive merit - Where appellant makes no progress with appeal despite earlier adjournments - Application for adjournment dismissed
Legislation:
Criminal Appeals Act 2004 (WA), s 8(2), s 9(1), s 9(2)
Criminal Code (WA), s 441, s 443, s 444
Sentencing Act 1995 (WA), s 110, s 111, s 112, s 113, s 117
Result:
Application for adjournment refused
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| First Respondent | : | B Murray |
| Second Respondent | : | B Murray |
| Third Respondent | : | B Murray |
| Fourth Respondent | : | B Murray |
Solicitors:
| Appellant | : | In person |
| First Respondent | : | Director of Public Prosecutions (WA) |
| Second Respondent | : | Director Of Public Prosecutions (WA) |
| Third Respondent | : | Director Of Public Prosecutions (WA) |
| Fourth Respondent | : | Director Of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Fisher v Moffat [2019] WASC 39
Huggins v The State of Western Australia [2018] WASCA 61
Lawson v The State of Western Australia [No 2] [2018] WASCA 204
Lewis v The State of Western Australia [2008] WASCA 155; (2005) 37 WAR 483
Liberti v The Queen (1991) 55 A Crim R 120
R v Inns (1974) 60 Cr App R 231
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Snook v Registrar of the Fines Enforcement Registry [2019] WASCA 204
The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
The State of Western Australia v Sillich [2011] WASCA 135; (2011) 43 WAR 285
Truong v The Queen [2004] HCA 10; (2004) 223 CLR 122
Vella v The State of Western Australia [2006] WASCA 129
TOTTLE J:
Introduction
At the conclusion of the hearing of the appellant's application for leave to appeal on 5 March 2020 I made orders refusing the appellant's application for an adjournment, refusing leave to appeal and dismissing the appeal. These are my reasons for making those orders.
On 8 March 2019 the appellant was convicted on his pleas of guilty to the following seven offences:
(a)criminal damage contrary to s 444(1)(b) of the Criminal Code (WA) by wilfully and unlawfully damaging a car with an axe, the offence was committed on 18 September 2018, (PE 50619/2018);
(b)being armed with or dangerous or offensive weapon, namely an axe, in a way that may cause fear contrary to s 68(1) of the Criminal Code, the weapon was the axe used to damage the car the subject of the criminal damage charge in (a) above, the offence was committed on 18 September 2018 (PE 50620/2018);
(c)possession of drug paraphernalia in or on which there was a prohibited drug (methylamphetamine) contrary to s 7B(6) of the Misuse of Drugs Act 1981 (WA), the offence was committed on 24 September 2018, (PE 55512/2018);
(d)driving a motor vehicle bearing forged, replica or false plates on a road, contrary to s 36(2)(e) of the Road Traffic (Administration) Act 2008 (WA), the offence was committed on 28 September 2018 (PE 5333/2018);
(e)possession of drug paraphernalia in or on which there was a prohibited drug (methylamphetamine) contrary to s 7B(6) of the Misuse of Drugs Act 1981, the offence was committed on 28 September 2018, (PE 53334/2018);
(f)criminal damage contrary to s 444(1)(b) of the Criminal Code by wilfully and unlawfully damaging a glass window and a wooden door in the rental property in which he was then living, the offence was committed on 6 February 2019, (PE 6276/2019); and
(g)being armed with a dangerous or offensive weapon, namely a hammer, in a way that may cause fear contrary to s 68(1) of the Criminal Code, the offence was committed on 6 February 2019, the victim of this offence was the woman whose property was the subject of the criminal damage charge referred to in (f) above, (PE 6277/2019).
This application for leave to appeal concerns the offences committed on 6 February 2019 - the offences referred to in (f) and (g).
On 8 March 2019 the magistrate sought an oral pre-sentence report and adjourned the sentencing hearing to 26 March 2019.
On 26 March 2019 the appellant was sentenced. In respect of the criminal damage offence and the being armed with a dangerous or offensive weapon offence committed on 6 February 2019 the sentence imposed in respect of each offence was identical and was constituted by the imposition of a 12 month intensive supervision order and an order that the appellant perform 60 hours of community service work. The magistrate made a compensation order in the amount of $4,674.83 to the owner of the property damaged by him on 6 February 2019.[1] The sentences were expressed to operate concurrently with each other and concurrently with sentences in identical terms imposed in respect of the offences referred to in 1(a), (b), (c) and (d). The appellant was fined $300 for the offence of driving a motor vehicle bearing forged, replica or false plates.
[1] Under the Sentencing Act 1995 (WA) a compensation order is a form of reparation order: s 109.
The appellant appeals against both conviction and sentence for charges PE 6276/2019 and PE 6277/2019. The appellant represented himself in this appeal. The grounds of appeal as expressed in the appeal notice prepared by him and filed on 4 April 2019 were as follows:
(1)The sentence is manifestly excessive.
(2)The police charges are falsely put together.
At the commencement of the first hearing of the application on 19 December 2019 the appellant clarified that his application was directed to the convictions for the offences committed on 6 February 2019 and to the compensation order of $4,674.83.[2]
[2] ts, 19 December 2019, 11 - 12.
The proceedings in the Magistrates Court
The appellant first appeared in the Magistrates Court in respect of the 6 February 2019 offences on 8 February 2019. On that occasion the appellant was represented by duty counsel, however, the appellant addressed the court quite extensively on his own behalf. The appellant denied the offending and indicated an intention to plead not guilty. The appellant's application for bail was denied and he was remanded in custody.
The matters were next mentioned on 14 February 2019 and there was an adjournment until the following day.
On 15 February 2019 the appellant pleaded guilty to the two offences committed on 6 February 2019 but as the hearing progressed it became clear that he denied the facts that were alleged by the prosecution. Specifically the appellant denied being in possession of a hammer. The appellant told the court that he had been playing pool and that it was the pool cue that was used to break the window and door.[3] The matter was adjourned again until 18 February 2019.
[3] ts, 15 February 2019, 5.
At the hearing on 18 February 2019 the appellant was represented by duty counsel. The guilty pleas that had been entered on 15 February 2019 were set aside. In the course of the hearing on 18 February 2019 the following exchange took place between the appellant and the magistrate:[4]
ACCUSED: So can I just ask what amount of criminal damage ‑ was it an amount of money?
HIS HONOUR: Just give me one moment and I will answer that question for you.
ACCUSED: Thank you, sir.
HIS HONOUR: There's nothing in the prosecution notice. What does the facts allege is the value of the damage?
BAKOVIC, MR: The criminal damage, $800, pending quotes. It's a damaged window and a door.
HIS HONOUR: Approximately $800, Mr Momand.
ACCUSED: Thank you, sir.
[4] ts, 18 February 2019, 17.
On 18 February 2019 a trial date of 30 May 2019 was fixed. All of the charges referred to in the introduction to these reasons were, however, relisted on 8 March 2019 at the appellant's request as he wished to plead guilty to them.
At the hearing on 8 March 2019, the appellant was represented by an experienced criminal barrister. The charges were read to the appellant and he pleaded guilty to each of them.
The prosecutor read out the facts alleged as follows:[5]
… In relation to the criminal damage, charge 50619, at 4.17 pm on Tuesday, 18 September 2018 the victim attended the South Perth car wash located in Canning Highway. The victim parked his Mazda 3 at the car wash bay and remained in the vehicle. The accused approached the victim's vehicle from behind armed with an axe. The accused struck the boot of the victim's vehicle with the axe causing damage. The victim drove from the scene and called police, reporting the matter which was captured on CCTV footage.
Request reparation of $750 to be paid to the victim and forfeiture of the axe. That covers the being armed charge 50620, your Honour. In relation to the drove, caused or permitted rep false plates, your Honour, charge 543, at 5.40 pm on Friday, 28 September 2018, the accused drove a white Ford Falcon utility on Westminster Street in East Victoria Park bearing New South Wales registrations that were not the correct ‑ the accused was stopped by police and ascertained that the registration plates fitted to the vehicle were not the ones issued by the licensing authority.
The accused was spoken to and made admissions to fitting the plates to the vehicle, knowing they did not belong on that vehicle. And the paraphernalia, your Honour, at the same time he was stopped police located a glass smoking pipe; request destruction, your Honour. And at 6.55 pm on Monday, 24 September 2018, was stopped on Goodwood Parade in Burswood and searched. Another smoking implement located in the front passenger seat, your Honour; request destruction.
And, your Honour, in relation to the other criminal damage charge 6276, on Wednesday, 6 February 2019 at 1 am the accused was present inside the living area of [the property]. Also present inside the house was the witness who was asleep in a bedroom. The accused used a solid object believed to be a hammer to damage the lounge room window by smashing it. The accused then used the solid object to damage a wooden door leading to the studio of the resident by hitting it once near the centre, causing a hole.
The witness woke up to the sound of the glass smashing and the door being damaged. She opened her door slightly and peered into the living area. The witness sighted the accused standing in the living room with a hammer in his hand acting erratically. The accused shouted at the witness and the witness closed her door. Police attended and located the accused inside his bedroom. Request reparation to the damaged window and door to the value of $800, your Honour, and forfeiture of the hammer. That covers the facts, I believe, to all the charges, your Honour.
[5] ts, 8 March 2019, 16 - 17.
The appellant's counsel stated that the facts alleged were admitted.[6] In relation to the offending the appellant's counsel told the magistrate:[7]
[The appellant] instructs in relation to all of the incidents of damage and armed he actually had no personal gripes or disagreements with any of the witnesses or complainants. He was simply angry and he accepts that he was so angry that he would have scared the people, and that's the basis on which he has pleaded guilty.
[6] ts, 8 March 2019, 17.
[7] ts, 8 March 2019, 17 - 18.
The magistrate asked the appellant's counsel whether the victim in relation to the 6 February 2019 offences was a stranger to the appellant and counsel answered as follows:[8]
No, he was living at the address. He was just so angry at the time and that's consistent with his presentation as described in the statement of material facts. In all honesty, he didn't even realise that she was home. He was simply angry and lashing out and damaging property and it's accepted that she certainly must have felt fearful in those circumstances, given his behaviour, and [the appellant] instructs that it was certainly a crazy way in which he behaved on that particular occasion. I can indicate to your Honour that ‑ your Honour is probably not surprised to hear ‑ that there's issues surrounding mental health for [the appellant].
[8] ts, 8 March 2019, 18.
In the course of the hearing on 8 March 2019, the magistrate described the appellant's use of an axe and a hammer to effect criminal damage. The appellant interrupted the magistrate as he was speaking and referring to the acts and hammer said:[9]
I work as a handyman. I've done a pre-apprenticeship for construction and I work with those tools. It absolutely gives me no excuse for what I've done, but I work with those tools on a daily basis. It was not meant to be used as weapons whatsoever, and I apologise.
[9] ts, 8 March 2019, 22.
As recorded earlier, on 8 March 2019 the magistrate sought a pre‑sentence report and adjourned the sentencing of the appellant to 26 March 2019. A pre-sentence report was given to the court orally on 26 March 2019 by a community corrections officer. Among other matters the community corrections officer stated that the appellant 'acknowledged his offending and didn't dispute the statement of material facts'.[10]
[10] ts, 26 March 2019, 15.
Again, the appellant was represented by counsel at the hearing on 26 March 2019. In the course of the hearing on 26 March 2019 the following exchange took place in relation to compensation for the cost of repairing the damage caused by the appellant on 6 February 2019:[11]
[11] ts, 26 March 2019, 19 - 20.
CUTLER, MR: There is a single order for reparations requested for the ‑ I believe it's the matter where the hammer was used to smash some windows and a door.
HIS HONOUR: Yes.
CUTLER, MR: Seen that? It's quite a substantial quote that's being asked. I could hand that up, your Honour. I believe it's a total of $4000. There is a quote attached - - -
HUGHES, MS: Might I just take instructions, your Honour?
HIS HONOUR: Doesn't seem too bad.
HUGHES, MS: There's no objection to that order being made, your Honour.
CUTLER, MR: I apologise, your Honour. I misspoke. It's ‑ the labour which is attached to that quote wasn't added. It's $4674 total which is being requested.
HIS HONOUR: $4064.
CUTLER, MR: 674.
HIS HONOUR: Sorry, I've got lots of ‑ the unit price of each of the windows seems to have been about $2032.
CUTLER, MR: Okay. Sorry, yes. It seems like they're two metre ‑ that the dimensions of the windows are quite large. They're not a small window.
HIS HONOUR: No, I'm not querying that. So twice times 2032.42 ‑ ‑ ‑
CUTLER, MR: Sorry, my partner might be able to - - -
LASSAU, MR: Your Honour, the quotes that have been handed up, the one on the front is for the damage to the wooden structural doors to the value of 600, and then - - -
HIS HONOUR: I see.
LASSAU, MR: - - - moving on to the second quote, which is the damage to the glass panelling. So the amount that my colleague read out is the combined amount, the 600 plus the one for the windows.
HIS HONOUR: So it's four thousand?
LASSAU, MR: 674.
HIS HONOUR: 4674…
I infer from counsel's request to take instructions and to her statement that there was no objection to the proposed compensation order that the appellant's counsel took instructions from him and was instructed that he had no objection to that order being made. At the conclusion of the hearing the magistrate explained to the appellant some consequences of the sentences that had been imposed. His Honour concluded this part of his sentencing remarks as follows:[12]
HIS HONOUR: So there's that. You're ordered to pay compensation to [the complainant] in the sum of $4674.83. There's an order for destruction of the methylamphetamine and the drug paraphernalia, and you need to understand that if you breach the order or you commit any offence during the order that carries with it the option of imprisonment, you will be back here to be resentenced, and that could mean more prison, which you don't want. You have 72 hours in which to report to a community corrections office. You can do that on the fourth floor here. So I hope you will do that today.
ACCUSED: Yes.
[12] ts, 26 March 2019, 22 - 23.
Leave to appeal
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA) meaning that leave to appeal is required for each ground of appeal.[13]
[13] Criminal Appeals Act 2004 (WA) s 9(1).
Leave must not be granted unless the court is satisfied that the ground has a reasonable prospect of success.[14] This means that each ground must have a real, rational and logical prospect of succeeding.[15]
[14] Criminal Appeals Act 2004 (WA) s 9(2).
[15] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
Proceedings before this court and refusal of adjournment
At the hearing of this appeal on 5 March 2020, I refused the appellant's application for an adjournment of the proceedings. To explain my reasons for refusing an adjournment it is necessary to outline the history of the proceedings before this court.
On 4 April 2019 the appellant lodged his appeal notice. On 25 September 2019, the Principal Registrar made orders that the application for leave to appeal be heard with the appeal and that the appellant file with the Court an entry for hearing by 1 October 2019. The Principal Registrar also made orders that the appellant file submissions in support of the appeal not less than 21 days before the hearing of the appeal.
On 1 October 2019, an entry for hearing was filed with the Court. On 11 October 2019, my Associate wrote to the parties to the appeal notifying them that the appeal had been listed for hearing at 10.00 am on 19 December 2019.
On 17 December 2019, the respondents filed an outline of written submissions addressing what they understood to be the issues raised by the appeal notice, however no submissions were filed by the appellant.
At the hearing on 19 December 2019, the appellant sought an adjournment of the matter. I interpolate that at this stage the appellant had been arrested in respect of other offences, unrelated to this appeal, and had been remanded in custody since 5 December 2019. The appellant stated:[16]
MOMAND, MR: Yes, sir. This morning, sir, I find myself in custody, which I didn't really expect, for a different matter. I am seeking the court this morning for an adjournment of ‑ so that I can have enough time and resources that I can hand in the submissions, which I haven't done as yet.
TOTTLE J: Well - - -
MOMAND, MR: The extension, sir, that I require will be a couple of months. I'm hoping to get out on bail for the matters that I'm in custody for this coming Monday so that I can have ‑ I've also had health issues which I've been ‑ which I was in hospital for for several days. So I haven't had adequate time at all to put my submissions together and hand it in to the appeals court. I've got up to the stage of handing in the – some outlines, but not actual submissions.
[16] ts, 19 December 2019, 9.
The appellant continued as follows:[17]
MOMAND, MR: With all due respect, I'm not a lawyer. I have applied for a lawyer to help me with this appeal, which I've been rejected by Legal Aid. So I've done the best that I could, and in all due respect, also, I was only given ‑ I think it was about four weeks to hand in the submissions outlining ‑ I don't think it's adequate time enough for someone who doesn't ‑ who's not a lawyer and is ‑ actually, English is my third language, sir.
So in all due respect, I do need more time, especially now that I'm in custody. There is absolutely no resources in Hakea Prison for me to ‑ you know, to write ‑ to type in the submissions and also refer to some ‑ I think it says that I have to refer to some cases and also put some cases as examples within ‑ with those submissions. There are no resources in Hakea Prison, sir. I definitely need more time. Even if I was not put in custody, sir, I would have definitely asked for an adjournment, because four weeks is just not long enough.
[17] ts, 19 December 2019, 9.
The respondents accepted that ordinarily an adjournment would be appropriate to give the appellant an adequate opportunity to present his case, however the respondents opposed the adjournment on the basis that the appeal was plainly without merit.
I indicated to the appellant that my tentative view was the appeal appeared to lack any substantive merit, however given the matters raised by the appellant I would grant the appellant an adjournment to 20 February 2020.
In the course of the 19 December 2019 hearing the appellant indicated that he required copies of the transcripts of proceedings before the Magistrates Court. I informed the appellant that this court only had copies of the transcripts from 8 March 2019 and 26 March 2019, which the appellant had filed with the Court.
On 10 February 2020 the Court of Appeal Office received a letter by facsimile from the appellant. That letter explained that the appellant had not been able to obtain transcripts from the Magistrates Court for a number of hearings preceding his sentencing on 26 March 2019. The appellant requested that I waive any applicable fees for obtaining those transcripts. Regrettably, and for reasons not attributable to the appellant, that letter was not brought to the attention of my chambers until the afternoon of 19 February 2020. In response to the appellant's request my Associate urgently obtained copies of the transcripts of proceedings before the Magistrates Court on 22 November 2018, 8 February 2019, 14 February 2019, 15 February 2019, 18 February 2019, 8 March 2019 and 26 March 2019. Additionally, transcripts were obtained for the proceedings before this Court on 30 August 2019 (a hearing before the Principal Registrar) and 19 December 2019.
A copy of each of those transcripts was provided to the appellant at the commencement of the hearing on 20 February 2020. The appellant made reference to his grounds of appeal and stated:[18]
I will mention all those in my submissions which I already have partly prepared. I was just waiting for the transcripts so I could finish them off, that's all.
[18] ts, 20 February 2020, 33.
The respondents did not oppose adjourning the matter further to give the appellant a chance to consider the transcripts of proceedings and to complete his submissions. In respect of the adjournment the following exchange took place:[19]
TOTTLE J: … 5 March is a date when I think you're available, the court is available. Mr Momand, that gives you enough time?
MOMAND, MR: I'm ‑ that's plenty of time. Thank you.
TOTTLE J: All right. So I will adjourn it to 10 am on 5 March.
TOTTLE J: All right. Now, Mr Momand, before I adjourn the court is there anything else from your point of view?
MOMAND, MR: No, sir, that will be fine.
[19] ts, 20 February 2020, 37.
At the hearing on 5 March 2020, the appellant had not prepared an outline of submissions, he stated:[20]
MOMAND, MR: Good morning, sir. I ‑ it has come to a stage of this appeal that I no longer can ‑ I no longer can represent myself. I don't think I'm qualified enough at all. I don't have the resources. I'm a prisoner at Casuarina Prison. There are no law books, there are no computers. There is ‑ I'm allowed to use the ordinary library once a week for one hour on Thursdays - only one hour.
My education level is up to year 11 in a school here in Australia, and my English is my third language. I'm in trouble. I'm stuck. I need help. I need a lawyer's help to put this appeal together. There has been a massive miscarriage of justice. This appeal is valid. I just need help to put it together.
…
… if you wish to give me a normal procedure chance to have this appeal put properly on paper and present it to the court, so I can have ‑ I didn't have a fair court appearance on the sentencing date, which ‑ no, I'm not getting a fair go again in the appeals court, because I don't have a lawyer, I don't understand the law, and this appeal is not being presented to you properly ‑ the way it should be.
[20] ts, 5 March 2020, 43, 47.
I invited the appellant to address me on why he believed a miscarriage of justice had occurred, and in the course of his submissions I indicated to the appellant that nothing he had submitted indicated that his appeal had any substantive merit. Despite the appellant's previous statements about the state of his submissions, on this occasion the appellant asserted:[21]
MOMAND, MR: Nothing has been done, sir. From the time that I put this appeal, I haven't ‑ I have not put anything on paper to forward to you, so you can have the opportunity to tell me that ‑ you know, that nothing can be done. I've heard you this morning. I've heard you clearly. I've understood what you said, but I don't agree. I think it's unfair, because I haven't even ‑ I haven't even able to ‑ been able to put what I want to - what I ‑ how I want this appeal to be put on paper.
I haven't been able to explain it to you in my ‑ with my own English, to be honest with you, sir. This is why I'm still disagreeing that there is no merit to this appeal. There is. And I go back to my first legal advice on this, which was April 2019, just before I went and filed for this appeal, that there is ‑ there is a merit. And I was advised by a qualified lawyer.
[21] ts, 5 March 2020, 52.
Whether a hearing should be adjourned is a matter for the Judge's discretion. In Snook v Registrar of the Fines Enforcement Registry, the Court of Appeal stated:[22]
The court has an inherent power to grant or refuse an adjournment of proceedings. The power involves the exercise of a judicial discretion. The exercise of the discretion will be informed by the goal and objects in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA) and proper principles of case management as enunciated in AON Risk Services Australia Ltd v Australian National University. Insofar as the time of the court is a publicly funded resource, inefficiencies in the use of that resource arising from the vacation or adjournment of hearings is properly taken into account in the exercise of the discretion. The public interest in the efficient use of court resources is a relevant consideration in the exercise of the discretion to adjourn. (citations omitted)
[22] Snook v Registrar of the Fines Enforcement Registry [2019] WASCA 204 [29].
However, the ultimate aim of the court is the attainment of justice and no principle of case management can be allowed to supplant that aim, particularly in criminal proceedings where the liberty of an individual is at stake.[23] As Martin CJ observed in The State of Western Australia v Sillich:[24]
There is a strong public interest in the timely disposition of all criminal cases, including criminal appeals. In most cases, those who are interested in the final resolution of a criminal case are not limited to the prosecutor and the accused. In addition to the public interest in the final resolution of serious criminal cases such as this, there will often be others with a specific and identifiable interest in the timely conclusion of the proceedings … Public resources provided to the prosecution and the court are also dissipated every time there is a late adjournment. In this sense, the interests of the parties are to be balanced with the effect of the adjournment on 'court resources and the competing claims by litigants in other cases awaiting hearing'.
While these are important and weighty considerations, they will necessarily be subordinated to the interests of justice in a case in which it is established that the refusal of an adjournment would deprive an accused, or an appellant, of the opportunity to present a case which has a real prospect of success. (citations omitted)
[23] The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, 154; Truong v The Queen [2004] HCA 10; (2004) 223 CLR 122 [151] (Kirby J); Lewis v The State of Western Australia [2008] WASCA 155; (2005) 37 WAR 483 [42] (Buss JA, McLure & Pullin JJA agreeing).
[24] The State of Western Australia v Sillich [2011] WASCA 135; (2011) 43 WAR 285 [36] - [37].
I considered the appellant's statements that he is not legally represented, that he does not have legal training, that English is his third language, that he is currently incarcerated without ready access to legal materials for the preparation of the appeal and that he believes with legal representation his appeal could be put into an arguable state. Ultimately I concluded that the application for an adjournment should be refused for the following reasons:
(a)The primary and decisive reason for my refusing a further adjournment was, as I have concluded in detail below, the appellant's grounds of appeal were wholly without merit. Not only were there no reasonable prospect of success, each of the grounds was doomed to failure. Further, nothing in the material before the Court gave any indication that any other issue, not argued by the appellant, could ground an application for appellate intervention. In my view there was no injustice in refusing the adjournment.
(b)The appellant commenced his appeal some 11 months prior to the hearing. Notwithstanding his previous statements, it was the appellant's position at 5 March 2020 that he had not taken any steps to prepare his submissions for the appeal. This statement followed two previous adjournments of the hearing. Although not a determinative factor, the administration of justice requires matters before this Court to be pursued efficiently and without undue delay. The fact that the appeal had not been advanced by the appellant despite two previous adjournments weighed against granting a further adjournment.
(c)Notwithstanding the appellant's statements relating to his education and English competency, the appellant is a man who has completed Year 11 education in Australia and was later accepted to study teaching at a university in Australia, although those studies were short lived. On each occasion where the appellant appeared in this Court he presented as being intelligent and articulate. The appellant was no stranger to the criminal justice process. The appellant was able to express clearly his grounds of appeal and displayed an appreciation for and understanding of the matters that were being put to him. This was not a case where the appellant could not understand the nature or conduct of the proceedings.
(d)On 19 December 2019 the appellant had indicated that he had sought and been refused legal aid for the conduct of this appeal. The appellant did not provide any indication that since such refusal he had made any attempts to seek other legal assistance or if he was able to afford private legal assistance. In any event, the appeal is without merit, in my view it was objectively unlikely that any reasonably competent solicitor, observing their ethical duties to this Court, would have agreed to advance this appeal on his behalf.
Appeal against conviction
The appellant has no prospect of overcoming the difficulties faced by him in advancing this ground of appeal ‑ he pleaded guilty to the offences whilst represented by experienced counsel who, in his presence, stated to the court on 8 March 2019 that the material facts were admitted. The appellant was in court on 26 March 2019 when the community corrections officer told the magistrate that the appellant acknowledged the offending and did not dispute the material facts. There was no expression of disagreement by the appellant and in this respect, I note that the transcripts of the hearings in the Magistrates Court disclose that on a number of occasions the appellant spoke up on his own behalf if there was something he thought needed to be said even though he was represented.
The Criminal Appeals Act 2004 (WA) s 8(2) provides that an appeal may be instituted against a decision even if the decision was made after a plea of guilty or an admission of the truth of any matter. The principles relevant in such circumstances were stated by the Court of Appeal in Lawson v The State of Western Australia [No 2]:[25]
A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is, in truth, guilty or not guilty. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a person does act on such a plea, even if the person entering it is not, in truth, guilty of the offence [Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 141].
[25] Lawson v The State of Western Australia [No 2] [2018] WASCA 204 [17] - [19] (Buss P, Mazza & Beech JJA).
In Vella v The State of Western Australia[26] Steytler P, with whom Wheeler and Buss JJA agreed, outline the circumstances in which this court will allow an appeal against conviction based on a plea of guilty:[27]
It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. In such a case, the appellant must show that there has been a miscarriage of justice. The cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being cases in which the appellant did not understand the nature of the charge or intend to admit guilt, cases in which, upon the admitted facts, the appellant could not in law have been guilty of the offence and cases in which the guilty plea has been obtained by improper inducement, fraud or intimidation and the like… (Citations omitted)
[26] Vella v The State of Western Australia [2006] WASCA 129.
[27] Vella v The State of Western Australia [26].
These categories of circumstance are not closed; the circumstances which may give rise to a miscarriage of justice cannot and should not be exhaustively stated.[28]
[28] Vella v The State of Western Australia [26].
Once a plea of guilty is entered and a conviction has been recorded, the approach to an application to change the plea is one of 'caution bordering upon circumspection'.[29]
[29] Liberti v The Queen (1991) 55 A Crim R 120, 122 (Kirby P); Fisher v Moffat [2019] WASC 39 [23] (Strk AJ).
As the respondents correctly submit, the onus is on the appellant to show on the balance of probabilities that a miscarriage of justice has occurred. The respondents submit that this is a particularly difficult threshold to meet in the circumstances where the appellant was represented on both occasions by experienced legal counsel and there was a three week period between the appellant pleading guilty and the appellant being sentenced.
The appellant's contention that he was not guilty, in fact, of the charges
Assuming, for the sake of argument, that the appellant is not guilty of the offences for the reasons articulated by him, the authorities above show that a miscarriage of justice does not occur because the appellant has pleaded guilty to an offence that he is not, in truth, guilty of. The basis of a plea in criminal proceedings is that in open court an accused freely says what he is going to do; and the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused's guilt.[30]
[30] R v Inns (1974) 60 Cr App R 231, 233 (Lawton LJ).
Nothing in the record before the magistrate indicates that the appellant did not accept the factual basis for the charges against him or that he did not otherwise intend to make the admissions of guilt that he made. To the contrary, it is apparent from the matters to which I have referred that the appellant took responsibility for the offending and wished to pursue a disposition which enabled him to be managed in the community in order to address the social issues which led to his offending. This submission is without merit.
The appellant's contention that he could not in law have been guilty of the offence of criminal damage
The appellant articulated this argument as follows:[31]
MOMAND, MR: … I lived in that house. I rented that house. It was a case ‑ it was an issue of myself and the landlord. What ‑ there shouldn't have even been a criminal charge against me of criminal damage and being armed in a way that may cause fear. I may have broken a door and a window, yes. I admitted to that. But like I said, that falls ‑ it happened inside my house. I didn't threaten anybody. There was nobody home.
… If I was approached by the ‑ well, if I was approached by the owner, if police didn't arrive, I would have paid for those damages of the door and window and that would have been the end of it. There should have been no criminal charge, sir.
[31] ts, 5 March 2020, 43, 44.
This argument is plainly without merit. It is to be noted that the question before this Court is whether the appellant could, on the admitted facts, have been guilty of the offence of criminal damage. The relevant facts as admitted by the appellant were:
(a)the appellant was present in the living area of the rental property.
(b)the appellant used a solid object believed to be a hammer to damage the lounge room window by smashing it.
(c)the appellant then used the object to damage a wooden door by hitting it and causing a hole.
Actions which cause injury to the property of another person done without that other persons consent are unlawful unless authorised justified or excused by law.[32]
[32] Criminal Code (WA) s 441(1).
The facts admitted by the appellant self-evidently show that the appellant by his wilful and unlawful actions intentionally destroyed or damaged property of another person. These facts sustain the charge of criminal damage.[33]
[33] Criminal Code (WA) s 441(1), s 443, s 444(1).
The appellant's submission that a tenant, who wilfully and unlawfully damages the property of their landlord, is excused from criminal liability cannot be sustained. That submission is expressly negatived by s 441(2) of the Criminal Code (WA) which states:
(2)It is immaterial that the person who does the injury is in possession of the property injured, or has a partial interest in it.
Appeal against the compensation order
The appellant contends that the amount of $4,674.83, the subject of the compensation order, is excessive. He relies, among other things, on the fact that he was initially told that the damage to the property amounted to $800. He denies that his counsel sought instructions from him about the amount of compensation. He put the position as follows:[34]
[34] ts, 19 December 2019, 13 - 14.
MOMAND, MR: That's right, sir. Now, if you have a look at the transcripts when I did appear from Hakea Prison, I clearly asked the magistrate how much was the total damage, and $800 sounded a lot more better, because, sir, I only broke one window and I only broke one door. And $4700 is just ridiculous to - - -
TOTTLE J: Well, the transcript of the sentencing hearing on 26 March indicates that your lawyer at that stage asked you for instructions in relation to the amount that was sought by way of reparation.
MOMAND, MR: No, sir. I wasn't.
TOTTLE J: And - - -
MOMAND, MR: I wasn't asked at all.
TOTTLE J: And that - - -
MOMAND, MR: That's false, sir.
TOTTLE J: Well, it's here in black and white, Mr Momand.
MOMAND, MR: I was never asked to ‑ I was never asked. If you have a look at the previous appearances where I have asked the magistrate how much is the total, because I wanted my family to actually ‑ there was a lease between myself and the owner. I wanted to actually pay that money to the owner of the property that I caused the damage to, which is why I wanted to know what amount it was, and the magistrate replied back and said the total is $800.
The appellant is correct that before the hearing on the 26 March 2019 the only figure for compensation that had been mentioned in the context of his 6 February 2019 offending was $800 - though at the hearing on 18 February 2019 when the issue was first raised by the appellant the figure was referred to as '$800 pending quotes'. It should further be noted that the application for a reparation order is made at the time of sentencing proceedings.[35]
[35] Sentencing Act 1995 (WA) s 111(3).
I observe that a reparation order is in addition to and not part of the sentence imposed on the appellant.[36] However it is open to an offender to appeal against a reparation order.[37] A compensation order is an order that the offender pay an amount of money to a victim as compensation for loss of, or damage to, the victim's property and any expense reasonably incurred by the victim as a result of the offender's unlawful acts.[38] It is open to an offender at the time an application for a compensation order is made to make submissions in accordance with ss 112 and 113 of the Sentencing Act 1995 (WA) which state:
[36] Sentencing Act 1995 (WA) s 110(1).
[37] Sentencing Act 1995 (WA) s 110(6).
[38] Sentencing Act 1995 (WA) s 117(2).
112.Facts relevant to making reparation order
(1)In deciding whether to make and if so the terms of a reparation order in relation to an offence, a court may take into account as evidence —
(a)any evidence given during proceedings for the offence;
(b)the content of any record (as defined in the Criminal Procedure Act 2004) that is relevant to the offence and that has been disclosed to the offender by the prosecutor under that Act;
(c)any statement tendered, or deposition made, or exhibit tendered, at committal proceedings in relation to the offence;
(d)any evidence given by a victim or the offender in relation to the making of a reparation order.
(2)In deciding whether to make and if so the terms of a reparation order in relation to an offence, a court may take into account —
(a)any pre-sentence report given to the court;
(b)any victim impact statement given to the court;
(c)any mediation report given to the court.
113.Victim's behaviour and relationship relevant
A court may decide not to make a reparation order or to reduce the amount to be paid under a compensation order if —
(a)any behaviour, condition, attitude or disposition of the victim contributed directly or indirectly to the loss or damage suffered;
(b)the offence was not reported promptly to the police;
(c)the victim did not take reasonable steps to assist in the identification, apprehension or prosecution of the offender;
(d)because of any relationship or connection between the offender and the victim, it would be just to do so.
No submissions were made on behalf of the appellant concerning either the making of or the amount of compensation that was to be ordered.
The adequacy of the appellant's representation
As previously indicated the appellant was represented on 8 March 2019 and 26 March 2019 by an experienced criminal barrister. On those dates the appellant entered pleas of guilty and submissions were made in mitigation of sentence. The quoted amounts for the compensation order were put to the appellant's counsel and were accepted. Notwithstanding the transcript reference to the appellant's counsel seeking instructions on the quotes, the appellant denied that any instructions were taken. At the hearing before this Court on 5 March 2020, the appellant made further, quite serious, allegations against his counsel. It is unnecessary to canvas those allegations in detail other than to record that the appellant's position was that counsel had failed to seek or follow his instructions and that counsel had refused to present a case that the appellant was not guilty of the offence of criminal damage by reason of the landlord and tenant relationship.
For the reasons outlined above, if such instructions were given, it was entirely proper for the appellant's counsel not to accept those instructions as they would involve running a case before the magistrate that was without merit and doomed to failure.
In any event, I have no hesitation in concluding that at the hearing on 26 Mach 2019 the appellant's counsel sought the appellant's instructions about the amount of the compensation order and that the appellant instructed counsel that there was no objection to the order being made. That these instructions were sought and obtained is readily apparent from the extract from the transcript to which I have referred earlier. Moreover, the appellant was present in court and remained silent. If he had objected to the amount sought I would have expected him to have said so either when the discussion as to the amount took place or when the magistrate stated the terms of the order to him at the conclusion of the hearing.
Even if I had reached a different conclusion, the Court of Appeal has stated in Huggins v The State of Western Australia:[39]
An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged. This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client. It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence. It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel. For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant. (citations omitted)
[39] Huggins v The State of Western Australia [2018] WASCA 61 [376].
I would make two further points. First, the application for the compensation order was supported by quotes that were handed up to the magistrate. His Honour considered the quotes and stated, in effect, that they seemed reasonable to him. The quotes were provided to this court by the respondents (and in turn by this court to the appellant for the purposes of the hearing).
The nature of a compensation order is such that the amount of the order will depend on the injury to be compensated. The grant of a compensation order is constrained by s 117(2) of the Sentencing Act 1995. The compensation must be for loss or damage to the victim's property as a direct or indirect result of the offender's criminal conduct. 'Compensation' must be given its ordinary and natural meaning of giving something (here an amount of money) as an equivalent for loss or damage suffered.[40]
[40] See Macquarie Dictionary (7th Ed, 2017).
There is nothing in the magistrate's approach to the quotes or in the quotes themselves that discloses any appealable error. In my view the magistrate was plainly correct to find that the quoted amounts were reasonable to compensate the injury to the victim's property.
Secondly, the general rule is that parties before the courts are bound by the conduct of their counsel. The circumstances of this case reveal no reason to depart from that general rule ‑ to the contrary, the matters to which I have referred, point powerfully to the conclusion that the appellant's counsel was acting in accordance with his instructions and the appellant should be bound by his counsel's conduct. Whatever may be said of the prudence or wisdom of the appellant's counsel not challenging the quantum of the compensation order, I do not accept that the decision to accept those quotes as being reasonable occasioned a miscarriage of justice that warrants appellate intervention.
For the reasons stated leave to appeal in respect of the compensation order was refused.
Conclusion
Each of the grounds of appeal was without any discernible merit and on that basis I refused leave to appeal in respect of each of them.
As leave to appeal was refused on each ground of appeal, the appeal was taken to be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Tottle7 MAY 2020
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